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The cancellation of the
scheduled Lady Gaga concert is inevitably a big loss for the "Little
Monsters" in Indonesia, as they have been waiting a long time for the
American singer to perform in Indonesia.

The police's
justification in rejecting Lady Gaga is, in my opinion, plausible, as
she may "indulge in revealing her body, dancing erotically and spreading
pornography" (The Jakarta Post, May 19).

Such a consideration was
not made in an isolated room, however, as evinced by the demands from
Muslim conservative groups, which maintained that their opposition to
the planned show was to preserve public morals.

One question that came to my mind was what kind of morals are the groups trying to preserve?

Public morality, from a
human rights perspective, is one of two basic justifications for a state
to delimit and restrict people's human rights and fundamental freedom
of expression.

Related to the
justification on this basis, as stated in the Siracusa Principles on the
Limitation and Derogation Provisions in the International Covenant on
Civil and Political Rights (ICCPR), "since public morality varies over
time and from one culture to another, a state which invokes public
morality as a ground for restricting human rights, while enjoying a
certain margin of discretion, shall demonstrate that the limitation in
question is essential to the maintenance of respect for fundamental
values of the community".

Based on such an
interpretation, there are at least three explicit elements that ought to
be taken into account regarding the determination of public morality.

First is the dynamics of
society. In order to use public morality as a justification to limit
freedom of expression, we have to fully realize the existence of the
changing nature of society.

To be more specific, the Human Rights Committee for the ICCPR, for instance, says the concept of morals "derives from
many social, philosophical and religious traditions; consequently,
limitations for the purpose of protecting morals must be based on
principles not deriving exclusively from a single tradition.

Any such limitations must
be understood in the light of the universality of human rights and the
principle of non-discrimination.

The second element would
be the state's margin of discretion. The state's authority to restrict
someone's right to express him or herself shall not be interpreted as an
exclusive act of the state to jeopardize that right.

Moreover, the margin of
discretion itself implies an obligation of the state to draw a direct
and immediate connection between the expression and the threat when such
an expression is being imparted.

Third, the limitation imposed should be essential to the maintenance of respect for fundamental values held by the community.

Questions on public
morality thus bring us once again to contemplate our nation's shared
bond. Is our bond simply based on religion, ethnicity or even economic
interests? Or does it go beyond local, traditional and religious
unification?

In relation to this third
point, in national legal discourse, the Constitutional Court once had a
good opportunity to interpret freedom of expression vis-a-vis public
morality.

In the court's verdict
regarding the Pornography Law in 2003, the court simply argued that such
a law was completely in line with moral values enlisted in religious
teachings and culture, without going into details about any specific
religion or culture, and what part of the teachings had a close nexus
with anti-pornography afflatus.

Therefore, I entirely
conform to the dissenting opinion conveyed by Judge Maria F Indrati, who
argued that while the Pornography Law prohibited acts that did not
comply with moral norms in society, such a rule could not be considered
separate from any particularities in society.

Hence, I would argue that
the court failed to regard the basis of restricted freedom (public
morality to restrict freedom of expression) from the point of view of
the universality of human rights.

Thus, this failure could
potentially lead to the state's flurry in determining public morality in
order to limit an individual's freedom.

Departing from the three
elements determining public morality, brings us to an understanding that
the move against Lady Gaga show should not be merely based on a
one-sided opinion.

The National Police
should have applied the principle of proportionality in determining the
situation and they should have shown to the public the precise nature of
Lady Gaga's threat based on an objective appraisal.

To sum up, the Lady Gaga issue provides the nation with an
opportunity to discuss and better understand the nature of our national
bond.

As a worker in the area
of human rights, I am certainly a big fan of public discourse, as it
proves a nation's capability to live with diversities and respect
freedoms.

The fact that there
exists a small number of conservatives who oppose the concert does not
mean that human rights law does not preserve their right to opine.

However, given the use of
threats that accompanied their collective rejection, which is the worst
option in a discussion, I would tend to adopt the opposite stance.

The writer is a research
staffer at the Human Rights Research and Development Agency under the
Law and Human Rights Ministry. The opinions expressed are his own.